If the only securities being registered on this Form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting
company, and emerging growth company in Rule
12b-2
of the Exchange Act.
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
DESCRIPTION OF DEBT SECURITIES
The following summary of the terms of the debt securities describes general terms that apply to the debt securities. The particular terms of
any debt securities will be described more specifically in the prospectus supplement relating to such debt securities. Unless otherwise specified in the applicable prospectus supplement, the debt securities will be issued under an indenture to be
entered into among the Issuer, the Guarantor and The Bank of New York Mellon, as trustee (such trustee or any successor trustee, the Trustee). The indenture has been filed as an exhibit to the registration statement of which this
prospectus is part. The terms of the debt securities will include those stated in the indenture (including any supplemental indentures that specify the terms of a particular series of debt securities) as well as those made part of the indenture by
reference to the Trust Indenture Act of 1939, as in effect on the date of the indenture. The indenture will be subject to and governed by the terms of the Trust Indenture Act of 1939.
The Issuer may issue debt securities. The debt securities may be the Issuers senior, senior subordinated or subordinated and, unless
otherwise expressly stated in the applicable prospectus supplement, unsecured obligations and may be issued in one or more series. The debt securities of any series of the Issuer will have the benefit of a guarantee (a Guarantee) by the
Guarantor and may have the benefit of future subsidiary guarantees by one or more of the Issuers subsidiaries. No such subsidiary guarantors have been included as registrants under the registration statement of which this prospectus forms a
part and such subsidiary guarantors, if any, will be added as registrants pursuant to a post-effective amendment. The Guarantee will be the senior, senior subordinated or subordinated and, unless otherwise expressly stated in the applicable
prospectus supplement, unsecured obligation of the Guarantor. If so indicated in the applicable prospectus supplement, the Issuer may issue debt securities that are secured by specified collateral or that have the benefit of a Guarantee that is
secured by specified collateral. Unless otherwise expressly stated or the context otherwise requires, as used in this section, the term guaranteed debt securities means any debt securities that, as described in the prospectus supplement
relating thereto, are guaranteed by the Guarantor pursuant to the indenture; the term secured debt securities means any debt securities that, as described in the prospectus supplement relating thereto, are secured by collateral; the term
unsecured debt securities means any debt securities that are not secured by collateral; and the term debt securities includes both unsecured debt securities and secured debt securities.
The debt securities issued by the Issuer will be issued under an indenture, to be entered into by the Issuer, the Guarantor, a trustee,
registrar, paying agent and transfer agent and/or a collateral agent, as applicable. The trustee (if other than the Trustee), registrar, paying agent, transfer agent, collateral agent, calculation agent and/or foreign currency agent (collectively,
the agents), as applicable, shall be named in the applicable prospectus supplement. Unless otherwise expressly stated in the applicable prospectus supplement, the Issuer may issue both secured and unsecured debt securities under the
indenture.
The following summary of selected provisions of the indenture, the debt securities and the Guarantee is not complete, and the
summary of selected terms of a particular series of debt securities and, if applicable, the Guarantee of the debt securities of that series included in the applicable prospectus supplement also will not be complete. You should review the form of
indenture, the form of any applicable supplemental indenture and the form of certificate evidencing the applicable debt securities, which forms have been or will be filed as exhibits to the registration statement of which this prospectus is a part
or as exhibits to documents which have been or will be incorporated by reference in this prospectus. To obtain a copy of the form of indenture, the form of any such supplemental indenture or the form of certificate for any debt securities, see
Where You Can Find More Information in this prospectus. The following summary and the summary in the applicable prospectus supplement are qualified in their entirety by reference to all of the provisions of the indenture, any
supplemental indenture and the certificates evidencing the applicable debt securities, which provisions, including defined terms, are incorporated by reference in this prospectus. Capitalized terms used in this section and not defined have the
meanings assigned to those terms in the indenture.
The following description of debt securities describes general terms and provisions of
a series of debt securities and, if applicable, the Guarantee of the debt securities of that series to which any prospectus
4
supplement may relate. The debt securities may be issued from time to time in one or more series. The particular terms of each series that is offered by a prospectus supplement will be described
in the applicable prospectus supplement. If any particular terms of the debt securities or, if applicable, a Guarantee of the debt securities of that series or the indenture described in a prospectus supplement differ from any of the terms described
in this prospectus, the terms described in the applicable prospectus supplement will supersede the terms described in this prospectus.
General
The indenture provides that the debt securities may be issued without limit as to aggregate principal amount, in one or more series,
and in any currency or currency units, in each case as established from time to time in or under the authority granted by a resolution of the Board of Directors or as established in one or more supplemental indentures. All debt securities of one
series need not be issued at the same time, and may vary as to interest rate, maturity and other provisions and, unless otherwise provided, a series may be reopened, without the consent of the holders of the debt securities of that
series, for issuance of additional debt securities of that series ranking equally with debt securities of that series and otherwise similar in all respects except for issue date and issue price. Please read the applicable prospectus supplement
relating to the series of debt securities being offered for specific terms including, where applicable:
|
|
|
the title of the series of debt securities;
|
|
|
|
any limit on the aggregate principal amount of debt securities of the series;
|
|
|
|
whether such securities rank as senior debt securities, senior subordinated debt securities or subordinated debt securities;
|
|
|
|
whether the debt securities of the series will be guaranteed by any subsidiary guarantors and, if so, the names of the subsidiary guarantors of the debt securities of the series and a description of the subsidiary
guarantees;
|
|
|
|
the price or prices at which debt securities of the series will be issued;
|
|
|
|
the person to whom any interest on a debt security of the series shall be payable, if other than the person in whose name that debt security is registered on the applicable record date;
|
|
|
|
the date or dates on which the Issuer will pay the principal of and premium, if any, on debt securities of the series, or the method or methods, if any, used to determine those dates;
|
|
|
|
the rate or rates, which may be fixed or variable, at which debt securities of the series will bear interest, if any, or the method or methods, if any, used to determine those rates;
|
|
|
|
the basis used to calculate interest, if any, on the debt securities of the series if other than a
360-day
year of twelve
30-day
months;
|
|
|
|
the date or dates, if any, from which interest on the debt securities of the series will begin to accrue, or the method or methods, if any, used to determine those dates;
|
|
|
|
the dates on which the interest, if any, on the debt securities of the series will be payable and the record dates for the payment of interest;
|
|
|
|
the place or places where amounts due on the debt securities of the series will be payable and where the debt securities of the series may be surrendered for registration of transfer and exchange, if other than the
corporate trust office of the Trustee;
|
|
|
|
the terms and conditions, if any, upon which the Issuer may, at its option, redeem debt securities of the series;
|
|
|
|
the terms and conditions, if any, upon which the Issuer will repurchase or repay debt securities of the series at the option of the holders of debt securities of the series;
|
5
|
|
|
the terms of any sinking fund or analogous provision;
|
|
|
|
if other than U.S. dollars, the currency in which the purchase price for the debt securities of the series will be payable, the currency in which payments on the debt securities of the series will be payable, and
the ability, if any, of the Issuer or the holders of debt securities of the series to have payments made in any other currency or currencies;
|
|
|
|
any addition to, or modification or deletion of, any covenant or Event of Default with respect to debt securities of the series;
|
|
|
|
whether any debt securities of the series will be issued in temporary or permanent global form (global debt securities) and, if so, the identity of the depositary for the global debt securities if other than
The Depository Trust Company (DTC);
|
|
|
|
if and under what circumstances the Issuer will pay additional amounts (Additional Amounts) on the debt securities of the series in respect of specified taxes, assessments or other governmental charges and,
if so, whether the Issuer will have the option to redeem the debt securities of the series rather than pay the Additional Amounts;
|
|
|
|
the extent to which, or the manner in which, any interest payable on a temporary global debt security will be paid, if other than in the manner provided in the indenture;
|
|
|
|
the portion of the principal amount of the debt securities of the series which will be payable upon acceleration if other than the full principal amount;
|
|
|
|
the authorized denominations in which the debt securities of the series will be issued, if other than denominations of $2,000 and any integral multiples of $1,000;
|
|
|
|
the terms, if any, upon which debt securities of the series may be exchangeable for other property;
|
|
|
|
if the amount of payments on the debt securities of the series may be determined with reference to an index, formula or other method or methods and the method used to determine those amounts;
|
|
|
|
a description of the Guarantee;
|
|
|
|
if the debt securities of the series or, if applicable, a Guarantee of those debt securities will be secured by any collateral and, if so, a general description of the collateral and of some of the terms of any related
security, pledge or other agreements;
|
|
|
|
any rights of Holders of such Securities to convert or exchange, and the obligations of the Issuer to convert or exchange, such Securities into common shares or other securities or property;
|
|
|
|
any listing of the debt securities on any securities exchange;
|
|
|
|
any other terms of the debt securities of the series, the Guarantee and, if applicable, a subsidiary guarantee of the debt securities (whether or not such other terms are consistent or inconsistent with any other terms
of the indenture); and
|
|
|
|
the appointment of any agents, if other than the Trustee.
|
As used in this prospectus and any
prospectus supplement relating to the offering of debt securities of any series, references to the principal of and premium, if any, and interest, if any, on the debt securities of the series include the payment of Additional Amounts, if any,
required by the debt securities of the series to be paid in that context.
Debt securities may be issued as original issue discount
securities to be sold at a substantial discount below their principal amount. In the event of an acceleration of the maturity of any original issue discount security, the amount payable to the holder upon acceleration will be determined in the
manner described in the applicable prospectus supplement. Certain U.S. federal income tax considerations applicable to original issue discount securities will be described in the applicable prospectus supplement.
6
If the purchase price of any debt securities is payable in a foreign currency or if the principal
of, or premium, if any, or interest, if any, on any debt securities is payable in a foreign currency, the specific terms of those debt securities and the applicable foreign currency will be specified in the prospectus supplement relating to those
debt securities.
The terms of the debt securities of any series may differ from the terms of the debt securities of any other series, and
the terms of particular debt securities within any series may differ from each other. Unless otherwise expressly provided in the prospectus supplement relating to any series of debt securities, the Issuer may, without the consent of the holders of
the debt securities of any series, reopen an existing series of debt securities and issue additional debt securities of that series.
Unless otherwise described in a prospectus supplement relating to any series of debt securities and except to the limited extent set forth
below under Merger, Consolidation and Sale of Assets, the indenture does not contain any provisions that would limit the Issuers or the Guarantors ability or the ability of any of the Issuers subsidiaries to
incur indebtedness or other liabilities or that would afford holders of debt securities protection in the event of a business combination, takeover, recapitalization or highly leveraged or similar transaction involving the Issuer or the Guarantor.
Accordingly, the Issuer, the Guarantor and its subsidiaries may in the future enter into transactions that could increase the amount of its consolidated indebtedness and other liabilities or otherwise adversely affect its capital structure or credit
rating without the consent of the holders of the debt securities of any series.
Registration, Transfer and Payment
Unless otherwise indicated in the applicable prospectus supplement, each series of debt securities will be issued in registered form only,
without coupons.
Unless otherwise indicated in the applicable prospectus supplement, registered debt securities will be issued in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will be payable and may be surrendered for registration of transfer or exchange and, if applicable, for conversion into or exchange for other securities or property, at an office or agency maintained by the Issuer, in
the United States of America. However, the Issuer, at its option, may make payments of interest on any registered debt security by check mailed to the address of the person entitled to receive that payment or by wire transfer to an account
maintained by the payee with a bank located in the United States of America. Unless otherwise indicated in the applicable prospectus supplement, no service charge shall be made for any registration of transfer or exchange, redemption or repayment of
debt securities, or for any conversion or exchange of debt securities for other securities or property, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with that
transaction.
Unless otherwise indicated in the applicable prospectus supplement, the Issuer will not be required to:
|
|
|
issue, register the transfer of or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series of like tenor and terms
to be redeemed and ending at the close of business on the day of that selection;
|
|
|
|
register the transfer of or exchange any registered debt security, or portion of any registered debt security, selected for redemption, except the unredeemed portion of any registered debt security being redeemed in
part; or
|
|
|
|
issue, register the transfer of or exchange a debt security which has been surrendered for repayment at the option of the holder, except the portion, if any, of the debt security not to be repaid.
|
7
Guarantees
The debt securities of any series of the Issuer will be guaranteed by the Guarantor. Any series of the debt securities may also be guaranteed
by one or more of the Issuers subsidiaries. In the event the Issuer issues a series of debt securities guaranteed by one or more subsidiaries, any subsidiary guarantors will be identified in the applicable post-effective amendment and
applicable prospectus supplement.
A description of some of the terms of the Guarantee of a series of debt securities will be set forth in
the applicable prospectus supplement. The Guarantor of a series of debt securities will unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest, if any, on and any other amounts payable with
respect to, each debt security of such series and the due and punctual performance of all of the Issuers other obligations under the indenture with respect to the debt securities of such series, all in accordance with the terms of such debt
securities and the indenture.
Notwithstanding the foregoing, unless otherwise provided in the prospectus supplement, the indenture will
contain provisions to the effect that the obligations of the Guarantor under its Guarantee and the indenture shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of the Guarantor, result
in the obligations of the Guarantor under such Guarantee and the indenture not constituting a fraudulent conveyance or fraudulent transfer under applicable law. However, there can be no assurance that, notwithstanding such limitation, a court would
not determine that a Guarantee constituted a fraudulent conveyance or fraudulent transfer under applicable law. If that were to occur, the court could void the Guarantors obligations under that Guarantee, subordinate that Guarantee to other
debt and other liabilities of that Guarantor or take other action detrimental to holders of the debt securities of the applicable series, including directing the holders to return any payments received from the Guarantor.
The applicable prospectus supplement will specify other terms of the Guarantee, which may include provisions that allow the Guarantor to be
released from its obligations under its Guarantee under specified circumstances or that provide for the Guarantee to be secured by specified collateral.
Unless otherwise expressly stated in the applicable prospectus supplement, the Guarantee will be the senior, senior subordinated or
subordinated and unsecured obligation of the Guarantor and will rank on a parity in right of payment with all other senior, senior subordinated or subordinated and unsecured indebtedness and guarantees of the Guarantor, as applicable. Each Guarantee
(other than a secured Guarantee) will be effectively subordinated to all existing and future secured indebtedness and secured guarantees of the Guarantor to the extent of the value of the collateral securing that indebtedness and those guarantees.
Consequently, in the event of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding with respect to the Guarantor that has provided an unsecured Guarantee of any debt securities, the holders of that Guarantors secured
indebtedness and secured guarantees will be entitled to proceed directly against the collateral that secures that secured indebtedness or those secured guarantees, as the case may be, and such collateral will not be available for satisfaction of any
amount owed by the Guarantor under its unsecured indebtedness and unsecured guarantees, including its unsecured Guarantees of any debt securities, until that secured debt and those secured guarantees are satisfied in full. Unless otherwise provided
in the applicable prospectus supplement, the indenture will not limit the ability of the Guarantor to incur secured indebtedness or issue secured guarantees.
Unless otherwise expressly stated in the applicable prospectus supplement, each secured Guarantee will be an unsubordinated obligation of the
Guarantor and will rank on a parity in right of payment with all other unsecured and unsubordinated indebtedness and guarantees of the Guarantor, except that such secured Guarantee will effectively rank senior to the Guarantors unsecured and
unsubordinated indebtedness and guarantees in respect of claims against the collateral securing that secured Guarantee.
Book-entry Debt Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global debt securities. Global debt
securities will be deposited with, or on behalf of, a depositary which, unless otherwise
8
specified in the applicable prospectus supplement relating to the series, will be DTC. Global debt securities may be issued in either temporary or permanent form. Unless and until it is exchanged
in whole or in part for individual certificates evidencing debt securities, a global debt security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to
a successor depositary or to a nominee of the successor depositary.
The Issuer anticipates that global debt securities will be deposited
with, or on behalf of, DTC and that global debt securities will be registered in the name of DTCs nominee, Cede & Co. All interests in global debt securities deposited with, or on behalf of, DTC will be subject to the operations and
procedures of DTC and, in the case of any interests in global debt securities held through Euroclear Bank S.A./N.V. (Euroclear) or Clearstream Banking, société anonyme (Clearstream, Luxembourg), the operations
and procedures of Euroclear or Clearstream, Luxembourg, as the case may be, the Issuer also anticipates that the following provisions will apply to the depository arrangements with respect to global debt securities. Additional or differing terms of
the depository arrangements may be described in the applicable prospectus supplement.
DTC has advised the Issuer that it is:
|
|
|
a limited-purpose trust company organized under the New York Banking Law;
|
|
|
|
a banking organization within the meaning of the New York Banking Law;
|
|
|
|
a member of the Federal Reserve System;
|
|
|
|
a clearing corporation within the meaning of the New York Uniform Commercial Code; and
|
|
|
|
a clearing agency registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934.
|
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities
transactions, including transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants accounts, which eliminates the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations. Access to the DTC system is also available to others, sometimes referred to in this prospectus as indirect participants, that clear
transactions through or maintain a custodial relationship with a direct participant either directly or indirectly. Indirect participants include securities brokers and dealers, banks and trust companies. The rules applicable to DTC and its
participants are on file with the SEC.
Purchases of debt securities within the DTC system must be made by or through direct participants,
which will receive a credit for the debt securities on DTCs records. The ownership interest of the actual purchaser or beneficial owner of a debt security is, in turn, recorded on the direct and indirect participants records. Beneficial
owners will not receive written confirmation from DTC of their purchases, but beneficial owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the direct or
indirect participants through which they purchased the debt securities. Transfers of ownership interests in debt securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners
will not receive certificates representing their ownership interests in the debt securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all debt securities deposited by participants with DTC will be registered in the name of DTCs
nominee, Cede & Co. The deposit of debt securities with DTC and their registration in the name of Cede & Co. will not change the beneficial ownership of the debt securities. DTC has no knowledge of the actual beneficial owners of
the debt securities. DTCs records reflect only the identity of the direct participants to whose accounts the debt securities are credited. Those participants may or may not be the beneficial owners. The participants are responsible for keeping
account of their holdings on behalf of their customers.
9
Conveyance of notices and other communications by DTC to direct participants, by direct
participants to indirect participants and by direct and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time. Redemption notices shall be sent to DTC or
its nominee. If less than all of the debt securities of a series are being redeemed, DTC will reduce the amount of the interest of each direct participant in the debt securities under its procedures.
In any case where a vote may be required with respect to the debt securities of any series, neither DTC nor Cede & Co. will give
consents for or vote the global debt securities. Under its usual procedures, DTC will mail an omnibus proxy to the Issuer after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct
participants to whose accounts the debt securities are credited on the record date identified in a listing attached to the omnibus proxy. Principal and premium, if any, and interest, if any, on the global debt securities will be paid to
Cede & Co., as nominee of DTC. DTCs practice is to credit direct participants accounts on the relevant payment date unless DTC has reason to believe that it will not receive payments on the payment date. Payments by direct and
indirect participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in street name. Those payments
will be the responsibility of DTCs direct and indirect participants and not of DTC, the Issuer, any trustee or any underwriters or agents involved in the offering or sale of any debt securities. Payment of principal, premium, if any, and
interest, if any, to DTC is the Issuers, responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect
participants.
Except under the limited circumstances described below, beneficial owners of interests in a global debt security will not
be entitled to have debt securities registered in their names and will not receive physical delivery of debt securities. Accordingly, each beneficial owner must rely on the procedures of DTC to exercise any rights under the debt securities and the
indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in
definitive form. These laws may impair the ability to transfer or pledge beneficial interests in global debt securities.
DTC is under no
obligation to provide its services as depositary for the debt securities of any series and may discontinue providing its services at any time. Neither the Issuer, the Guarantor nor any trustee nor any underwriters or agents involved in the offering
or sale of any debt securities will have any responsibility for the performance by DTC or its participants or indirect participants under the rules and procedures governing DTC. As noted above, beneficial owners of interests in global debt
securities generally will not receive certificates representing their ownership interests in the debt securities. However, if:
|
|
|
DTC notifies the Issuer that it is unwilling or unable to continue as a depositary for the global debt securities of any series or if DTC ceases to be a clearing agency registered under the Securities Exchange Act of
1934 (if so required by applicable law or regulation) and a successor depositary for the debt securities of such series is not appointed within 90 days of the notification to the Issuer or of the Issuer becoming aware of DTCs ceasing to
be so registered, as the case may be,
|
|
|
|
the Issuer determines, in its sole discretion, not to have the debt securities of any series represented by one or more global debt securities, or
|
|
|
|
an Event of Default under the indenture has occurred and is continuing with respect to the debt securities of any series,
|
the Issuer will prepare and deliver certificates for the debt securities of that series in exchange for beneficial interests in the global
debt securities of that series. Any beneficial interest in a global debt security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for debt securities in definitive certificated form registered in
the names and in the authorized denominations that the depositary shall direct. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in
the global debt securities.
10
Clearstream, Luxembourg and Euroclear hold interests on behalf of their participating
organizations through customers securities accounts in Clearstream, Luxembourgs and Euroclears names on the books of their respective depositaries, which hold those interests in customers securities accounts in the
depositaries names on the books of DTC. At the present time, Citibank, N.A. acts as U.S. depositary for Clearstream, Luxembourg and JPMorgan Chase Bank, N.A. acts as U.S. depositary for Euroclear (the
U.S. Depositaries).
Clearstream, Luxembourg holds securities for its participating organizations (Clearstream
Participants) and facilitates the clearance and settlement of securities transactions between Clearstream Participants through electronic book-entry changes in accounts of Clearstream Participants, thereby eliminating the need for physical
movement of certificates. Clearstream, Luxembourg provides to Clearstream Participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing.
Clearstream, Luxembourg is registered as a bank in Luxembourg, and as such is subject to regulation by the Commission de Surveillance du
Secteur Financier and the Banque Centrale du Luxembourg, which supervise and oversee the activities of Luxembourg banks. Clearstream Participants are financial institutions including underwriters, securities brokers and dealers, banks, trust
companies and clearing corporations, and may include any underwriters or agents involved in the offering or sale of any debt securities or their respective affiliates. Indirect access to Clearstream, Luxembourg is available to other institutions
that clear through or maintain a custodial relationship with a Clearstream Participant. Clearstream, Luxembourg has established an electronic bridge with Euroclear as the operator of the Euroclear System (the Euroclear Operator) in
Brussels to facilitate settlement of trades between Clearstream, Luxembourg and the Euroclear Operator.
Distributions with respect to
global debt securities held beneficially through Clearstream, Luxembourg will be credited to cash accounts of Clearstream Participants in accordance with its rules and procedures, to the extent received by the U.S. Depositary for Clearstream,
Luxembourg. Euroclear holds securities and book-entry interests in securities for participating organizations (Euroclear Participants) and facilitates the clearance and settlement of securities transactions between Euroclear
Participants, and between Euroclear Participants and participants of certain other securities intermediaries through electronic book-entry changes in accounts of such participants or other securities intermediaries. Euroclear provides Euroclear
Participants, among other things, with safekeeping, administration, clearance and settlement, securities lending and borrowing, and related services. Euroclear Participants are investment banks, securities brokers and dealers, banks, central banks,
supranationals, custodians, investment managers, corporations, trust companies and certain other organizations, and may include any underwriters or agents involved in the offering or sale of any debt securities or their respective affiliates.
Non-participants
in Euroclear may hold and transfer beneficial interests in a global debt security through accounts with a participant in the Euroclear System or any other securities intermediary that holds a
book-entry interest in a global debt security through one or more securities intermediaries standing between such other securities intermediary and Euroclear.
Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of
Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law (collectively, the Terms and Conditions). The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals
of securities and cash from Euroclear and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of Euroclear Participants, and has no record of or relationship with persons holding through Euroclear Participants.
Distributions on interests in global debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear
Participants in accordance with the Terms and Conditions, to the extent received by the U.S. Depositary for Euroclear.
11
Transfers between Euroclear Participants and Clearstream Participants will be effected in the
ordinary way in accordance with their respective rules and operating procedures.
Cross-market transfers between direct participants in
DTC, on the one hand, and Euroclear Participants or Clearstream Participants, on the other hand, will be effected through DTC in accordance with DTCs rules on behalf of Euroclear or Clearstream, Luxembourg, as the case may be, by its
U.S. Depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, Luxembourg, as the case may be, by the counterparty in such system in accordance with the applicable rules and
procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, Luxembourg, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. Depositary to
take action to effect final settlement on its behalf by delivering or receiving interests in global debt securities in DTC, and making or receiving payment in accordance with normal procedures for
same-day
fund settlement applicable to DTC. Euroclear Participants and Clearstream Participants may not deliver instructions directly to their respective U.S. Depositaries.
Due to time zone differences, the securities accounts of a Euroclear Participant or Clearstream Participant purchasing an interest in a global
debt security from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear Participant or Clearstream Participant, during the securities settlement processing day (which must be a business day
for Euroclear or Clearstream, Luxembourg) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream, Luxembourg as a result of sales of interests in a global debt security by or through a Euroclear Participant or
Clearstream Participant to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream, Luxembourg cash account only as of the business day for Euroclear or
Clearstream, Luxembourg following DTCs settlement date.
Euroclear and Clearstream, Luxembourg are under no obligation to perform or
to continue to perform the foregoing procedures and such procedures may be discontinued at any time without notice. None of the Issuer, the Guarantor or any trustee or any underwriters or agents involved in the offering or sale of any debt
securities will have any responsibility for the performance by Euroclear or Clearstream, Luxembourg or their respective participants of their respective obligations under the rules and procedures governing their operations.
The information in this section concerning DTC, Euroclear and Clearstream, Luxembourg and their book-entry systems has been obtained from
sources that the Issuer believes to be reliable, but the Issuer takes no responsibility for the accuracy of that information.
Redemption and
Repurchase
The debt securities of any series may be redeemable at the option of the Issuer or may be subject to mandatory redemption
by the Issuer as required by a sinking fund or otherwise. In addition, the debt securities of any series may be subject to repurchase or repayment by the Issuer at the option of the holders. The applicable prospectus supplement will describe the
terms, the times and the prices regarding any optional or mandatory redemption by the Issuer or any repurchase or repayment at the option of the holders of any series of debt securities.
Secured Debt Securities
The debt
securities of any series and the Guarantee, if any, of the debt securities of any series may be secured by collateral. The applicable prospectus supplement will describe any such collateral and the terms of such secured debt securities.
Merger, Consolidation and Sale of Assets
Unless otherwise specified in the applicable prospectus supplement, the indenture provides that the Issuer will not consolidate or merge with
or into or wind up into (whether or not the Issuer is the surviving corporation),
12
or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
|
|
|
the Issuer is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such
Person, as the case may be, being herein called the Successor Company);
|
|
|
|
the Successor Company, if other than the Issuer, shall expressly assume all the obligations of the Issuer pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory in form to
the trustee;
|
|
|
|
immediately after giving effect to the transaction described above, no Event of Default under the indenture, and no event which, after notice or lapse of time or both would become an Event of Default under the
indenture, shall have occurred and be continuing;
|
|
|
|
the Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such persons obligations under the indenture and
the debt securities; and
|
|
|
|
the Trustee shall have received the officers certificate and opinion of counsel called for by the indenture.
|
In addition, with respect to secured debt securities, unless otherwise specified in the applicable prospectus supplement, the indenture
provides that immediately after giving pro forma effect to the transaction described above, (1) the Collateral owned by the Successor Company will continue to constitute Collateral under the indenture and related security documents and
(2) to the extent any assets of the Person which is merged or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the related security documents, the Successor Company will take such
action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the security documents in the manner and to the extent required by the indenture.
In the case of any such merger, consolidation, sale, assignment, transfer, lease, conveyance or other disposition in which the Issuer is not
the continuing entity and upon execution and delivery by the successor person of the supplemental indenture described above, such Successor Person shall succeed to, and be substituted for the Issuer and may exercise every right and power of the
Issuer under the indenture with the same effect as if such successor person had been named as the Issuer therein, and the Issuer shall be automatically released and discharged from all obligations and covenants under the indenture and the debt
securities issued under that indenture.
Unless otherwise specified in the applicable prospectus supplement, the merger, consolidation and
transfer of assets provisions described above are equally applicable to the Guarantor in its capacity as guarantor of such debt securities.
Events of
Default
Unless otherwise specified in the applicable prospectus supplement, an Event of Default with respect to the debt
securities of any series is defined in the indenture as being:
(1) default in payment when due and payable, upon redemption,
acceleration or otherwise, of principal of, or premium, if any, on the debt securities;
(2) default for 30 days or more in the
payment when due of interest on or with respect to the debt securities;
13
(3) default in the deposit of any sinking fund payment when and as due with respect to any
of the debt securities of that series;
(4) default in the performance, or breach, of any covenant or warranty of the Issuer in the
indenture, and continuance of such default or breach for a period of 90 days after there has been given written notice by the Trustee or the holders of at least 25% in principal amount of the outstanding debt securities (with a copy to the
Trustee) specifying such default or breach and requiring it to be remedied;
(5) the Issuer, pursuant to or within the meaning of any
Bankruptcy Law: (i) commences proceedings to be adjudicated bankrupt or insolvent; (ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under applicable Bankruptcy Law; (iii) consents to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or (v) generally is not paying its debts as they become due;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Issuer
in an involuntary case or proceeding; (ii) appoints a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any substantial part of the property of the Issuer; or (iii) orders the liquidation of the Issuer;
and, in each case in this clause (6), the order or decree remains unstayed and in effect for 90 consecutive days; and
(7) any other
Event of Default established for the debt securities of that series.
No Event of Default with respect to any particular series of debt
securities necessarily constitutes an Event of Default with respect to any other series of debt securities. The indenture provides that, within 90 days after the occurrence of any default with respect to the debt securities of any series, the
Trustee will mail to all holders of the debt securities of that series notice of that default. Except in the case of a default relating to the payment of principal, premium, if any, or interest on debt securities of any series, the Trustee may
withhold from the holders notice of any continuing default if and so long as a committee of its responsible officers in good faith determines that withholding the notice is in the interests of the holders of the debt securities. The Trustee shall
not be deemed to know of any default unless a responsible officer of the Trustee has actual knowledge thereof or unless written notice of any event which is such a Default is received by the Trustee at the corporate trust office of the Trustee.
The indenture provides that if any Event of Default (other than an Event of Default specified in clauses (5) or (6) of the
second preceding paragraph with respect to of the Issuer) occurs and is continuing under the indenture, the Trustee or the holders of at least 25% in principal amount of the then total outstanding debt securities may declare the principal, premium,
if any, interest and any other monetary obligations on all the then outstanding debt securities to be due and payable immediately. Upon the effectiveness of such declaration, such principal and interest shall be due and payable immediately. The
Trustee shall have no obligation to accelerate the debt securities if and so long as a committee of its responsible officers in good faith determines acceleration is not in the best interest of the holders of the debt securities. Notwithstanding the
foregoing, in the case of an Event of Default arising under clauses (5) or (6), all outstanding debt securities shall be due and payable immediately without further action or notice. The holders of a majority in aggregate principal amount of
the then outstanding debt securities by written notice to the Trustee may on behalf of all of the holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived.
Subject to the provisions of the Trust Indenture Act of 1939 requiring the Trustee, during the continuance of an Event of Default under
the indenture, to act with the requisite standard of care, the Trustee is under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities of any series unless those
holders have offered the Trustee indemnity reasonably satisfactory to the Trustee against the costs, fees and expenses and liabilities which might be incurred in
14
compliance with such request or direction. Subject to the foregoing, holders of a majority in principal amount of the outstanding debt securities of any series issued under the indenture have the
right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the indenture with respect to that series. The indenture requires the annual filing by the Issuer with the Trustee of a certificate
which states whether or not the Issuer is in default under the terms of the indenture.
Unless otherwise specified in the applicable
prospectus supplement, no holder of any debt securities of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to the indenture, or for the appointment of a receiver or trustee, or for any other remedy
under the indenture, unless:
|
|
|
such holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the debt securities of such series;
|
|
|
|
the holders of not less than 25% in principal amount of the total outstanding debt securities of such series shall have requested the Trustee to pursue the remedy;
|
|
|
|
holders have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss liability or expense incurred in compliance with such request;
|
|
|
|
the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
|
|
|
|
holders of a majority in principal amount of the total outstanding debt securities have not given the Trustee a direction inconsistent with such request within such
60-day
period.
|
Notwithstanding any other provision of the indenture, the right of any holder of a debt security to receive payment of
principal, premium, if any, and interest on the debt security, on or after the respective due dates expressed in the debt security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such holder.
Amendment, Supplement and Waiver
Unless otherwise specified in the applicable prospectus supplement, the indenture permits the Issuer, the Guarantor and the Trustee, with the
consent of the holders of at least majority in principal amount of the outstanding debt securities of each series issued under the indenture and affected by a modification or amendment, to modify or amend any of the provisions of the indenture or of
the debt securities of the applicable series or the rights of the holders of the debt securities of that series under the indenture. However, no such modification or amendment shall, among other things:
|
|
|
change the stated maturity of the principal of, or installment of interest, if any, on, any debt securities, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption thereof;
|
|
|
|
change the currency in which the principal of (and premium, if any) or interest on such debt securities are denominated or payable;
|
|
|
|
adversely affect the right of repayment or repurchase, if any, at the option of the holder after such obligation arises, impair the right of any holder to receive payment of principal or interest, or reduce the amount
of, or postpone the date fixed for, any payment under any sinking fund or amend the contractual right expressly set forth in the indenture or the debt securities to institute suit for the enforcement of any payment on or after the stated maturity
thereof (or, in the case of redemption, on or after the redemption date);
|
|
|
|
reduce the percentage of holders whose consent is required for modification or amendment of the indenture or for waiver of compliance with certain provisions of the indenture or certain defaults; or
|
|
|
|
modify the provisions that require holder consent to modify or amend the indenture or that permit holders to waive compliance with certain provisions of the indenture or certain defaults;
|
15
without in each case obtaining the consent of the holder of each outstanding debt security issued under the
indenture affected by the modification or amendment.
Unless otherwise specified in the applicable prospectus supplement, the indenture
also contains provisions permitting the Issuer, the Guarantor and the Trustee, without the consent of the holders of any debt securities issued under the indenture, to modify or amend the indenture, among other things:
|
|
|
to evidence the succession of another corporation to the Issuer, or, if applicable, the Guarantor under the indenture and the assumption by such successor of the covenants of the Issuer or the Guarantor in compliance
with the requirements set forth in the indenture;
|
|
|
|
to add to the covenants for the benefit of the holders or to surrender any right or power herein conferred upon the Issuer or the Guarantor;
|
|
|
|
to add any additional Events of Default;
|
|
|
|
to change or eliminate any of the provisions of the indenture, provided that any such change or elimination shall become effective only when there are no outstanding debt securities of any series created prior to the
execution of such supplemental indenture that is entitled to the benefit of such provision and as to which such supplemental indenture would apply;
|
|
|
|
to secure the debt securities;
|
|
|
|
to supplement any of the provisions of the indenture to such extent necessary to permit or facilitate the defeasance and discharge of the debt securities, provided that any such action does not adversely affect the
interests of the holders of the debt securities in any material respect;
|
|
|
|
to evidence and provide for the acceptance of appointment hereunder by a successor trustee and to add to or change any of the provisions of the indenture necessary to provide for or facilitate the administration of the
trusts by more than one trustee;
|
|
|
|
to cure any ambiguity, omission, defect or inconsistency or to correct or supplement any provision in the indenture which may be defective or which may be inconsistent with any other provision in the indenture, or to
make any other provisions with respect to matters or questions arising under the indenture;
|
|
|
|
to change any place or places where the principal of and premium, if any, and interest, if any, on the debt securities shall be payable, the debt securities may be surrendered for registration or transfer, the debt
securities may be surrendered for exchange, and notices and demands to or upon the Issuer may be served;
|
|
|
|
to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939;
|
|
|
|
to conform the text of the indenture or the debt securities to any provision of the section regarding the description of the notes contained in the prospectus supplement;
|
|
|
|
to make any amendment to the provisions of the indenture relating to the transfer and legending of debt securities as permitted by the indenture, including, without limitation to facilitate the issuance and
administration of the debt securities; provided, however, that (i) compliance with the indenture as so amended would not result in debt securities being transferred in violation of the Securities Act or any applicable securities law and
(ii) such amendment does not materially and adversely affect the rights of holders to transfer debt securities; or
|
16
|
|
|
to add additional guarantees or additional guarantors in respect of all or any securities under the indenture, and to evidence the release and discharge of the Guarantor or other guarantors from its obligations under
its guarantee of any or all securities and its obligations under the indenture in respect of any or all securities in accordance with the terms of the indenture.
|
Unless otherwise specified in the applicable prospectus supplement, the holders of a majority in aggregate principal amount of the outstanding
debt securities of any series may waive the compliance of the Issuer or the Guarantor with the provisions described above under Merger, Consolidation and Sale of Assets and certain other provisions of the indenture and, if
specified in the prospectus supplement relating to such series of debt securities, any additional covenants applicable to the debt securities of such series. The holders of a majority in aggregate principal amount of the outstanding debt securities
of any series may, on behalf of all holders of debt securities of that series, waive any past default under the indenture with respect to debt securities of that series and its consequences, except a default in the payment of the principal of, or
premium, if any, or interest, if any, on debt securities of that series or, in the case of any debt securities which are convertible into or exchangeable for other securities or property, a default in any such conversion or exchange, or a default in
respect of a covenant or provision which cannot be modified or amended without the consent of the holder of each outstanding debt security of the affected series.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus supplement, the Issuer may discharge certain obligations to holders of the debt
securities of a series that have not already been delivered to the Trustee for cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing with
the Trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including the principal, premium, if any, and interest to the date of such deposit (if the debt securities have become due and payable) or to
the maturity thereof or the redemption date of the debt securities of that series, as the case may be.
The indenture provides that the
Issuer may elect either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except for, among other things, obligations to register the transfer or exchange of the debt securities, to
replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys for payment in trust) (legal defeasance) or (2) to be released from
its obligations to comply with the restrictive covenants under the indenture, and any omission to comply with such obligations will not constitute a default or an event of default with respect to the debt securities of a series and clauses
(4) and (7) under Events of Default will no longer be applied (covenant defeasance). Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon, among other things, the
irrevocable deposit by the Issuer with the Trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or both, or other applicable currency or government obligations as set forth in a prospectus supplement, applicable
to the debt securities of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal or premium, if any, and interest on the debt
securities on the scheduled due dates therefor.
If the Issuer effects covenant defeasance with respect to the debt securities of any
series, the amount in U.S. dollars, or U.S. government obligations, or both, or other applicable currency or government obligations as set forth in a prospectus supplement, on deposit with the Trustee will be sufficient, to pay amounts due
on the debt securities of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from such event of default. However, the Issuer
would remain liable to make payment of such amounts due at the time of acceleration.
In the case of either legal defeasance or covenant
defeasance of the debt securities of a series, the Issuer will be required to deliver to the Trustee an opinion of counsel that the deposit and related defeasance will not cause
17
the holders and beneficial owners of the debt securities of that series to recognize income, gain or loss for U.S. federal income tax purposes. If the Issuer elects legal defeasance, that
opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
The Issuer
may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
Definitions
As used in the indenture, unless otherwise specified in the applicable prospectus supplement the following terms have the meanings specified
below:
Bankruptcy Law
means Title 11, U.S. Code and any similar federal, state or foreign law for the relief
of debtors.
Collateral
means, collectively, all of the property and assets that are from time to time subject to the
Lien of the security documents including the Liens, if any, required to be granted pursuant to the indenture.
Event of
Default
has the meaning set forth under the section Events of Default.
Lien
means,
with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
Person
means any individual, corporation, limited liability company, partnership, joint venture, joint-stock company,
association, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
Subsidiary
means, with respect to any Person, (i) any corporation, association, or other business entity (other than a
partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person
at such time; and (ii) any partnership, joint venture, limited liability company or similar entity of which more than 50% of the equity ownership, whether in the form of membership, general, special or limited partnership interests or
otherwise, is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
Governing Law
The indenture and the debt
securities (including the Guarantee and any other guarantees endorsed on the debt securities, if any) will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
The
Trust Indenture Act of 1939 limits the rights of a trustee, if the Trustee becomes a creditor of the Issuer to obtain payment of claims or to realize on property received by it in respect of those claims, as security or otherwise. Any trustee
is permitted to engage in other transactions with the Issuer and its subsidiaries from time to time. However, if a trustee acquires any conflicting interest it must eliminate the conflict upon the occurrence of an Event of Default under the
indenture or resign as trustee.
18